By Chantal Joris
Legal Officer, Article 19
The Government’s proposal to replace the Human Rights Act 1998 (the HRA) with the Bill of Rights (the Bill) has been widely criticised by human rights organisations, lawyers and academics. The Government boasts that replacing the HRA will bolster freedom of speech. At the same time, it has openly admitted that the Bill seeks to limit the enforceability of certain human rights. This includes for instance preventing – in the Government’s view – “trivial” human rights claims and preventing claims arising out of overseas military operations.
The Government’s claim that the Bill will strengthen freedom of speech is incorrect and even misleading. If passed in its current form, it would in fact do the opposite. First and foremost, the Bill would eliminate many of the key provisions that made the HRA the success it is today. The HRA has bolstered free expression in a number of areas, including by enhancing protections in defamation law; increasing protection of journalistic sources and material; and strengthening the right to protest. A closer examination of the provisions of the Bill shows further that, contrary to what the Government asserts, the provisions that specifically relate to free expression do not strengthen the right in any meaningful way. At the same time, many of the Bill’s wider proposals undermine freedom of expression.
The apparent protections of free speech are ineffective and limited in scope
There are several clauses in the Bill that specifically deal with freedom of expression issues – Clauses 4, 21 and 22. Clause 4 of the Bill requires courts to give “great weight to the importance of protecting [freedom of speech]”. While this may appeal to free speech advocates at first sight, this apparent layer of heightened protection is ineffective.
First, courts already have to give weight to freedom of expression, and it is unclear how the added notion of “great weight” is supposed to increase the protective level in a concrete case. The Government has argued that freedom of speech will be given a ‘trump card’ status and in particular emphasised that the Bill would alter the balance between freedom of speech and privacy in favour of freedom of speech. However, the Bill does not establish freedom of speech as an absolute right. As the Government itself recognises in the Explanatory Notes to the Bill (paragraph 58), the right would continue to be subject to the qualifications under Article 10 of the European Convention on Human Rights (ECHR) protecting freedom of expression.
These qualifications include the protection of the reputation or rights of others, such as the right to respect for private and family life under Article 8 of the ECHR. Courts also have a duty as public authorities not to act in a way that is incompatible with Article 8 of the ECHR (Clauses 12(1) and 34 of the Bill). In practice, this means that they will still have to engage in a balancing test when freedom of speech is in conflict with other Convention rights, including Article 8 of the ECHR. The outcome of such a balancing exercise will mainly depend on the facts of the case and the specific rights and public interest issues involved.
At the same time, because the Bill weakens many of the provisions of the HRA that today enhance the protection of freedom of expression – for instance the Bill eliminates the requirement that UK courts take account of European Court of Human Rights (ECtHR) jurisprudence when deciding on free expression cases – it in fact reduces the occasions on which courts must give weight to freedom of expression.
Second, the apparent “heightened” protection is not afforded to all forms of expression, but only to “free speech” – which means that its scope is narrower than that of Article 10 of the ECHR. Clause 4 includes the right “to impart ideas, opinions or information by means of speech, writing or images”. But what is missing? For one, the right to receive information – albeit the motivation behind that exclusion is unclear. But perhaps more importantly, Clause 4 disregards the right to protest in many forms, including through civil disobedience or boycotts. This is problematic, particularly in light of recent legislations, namely the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Bill (currently going through Parliament). These legislations strike at the very heart of our right to protest by handing over unprecedented levels of discretion to the police, at a time where public confidence in UK policing is already low, and criminalising direct action.
The Government also excludes the application of Clause 4 in other areas where the exercise of freedom of expression is at its most vulnerable. It namely excludes criminal offences and criminal proceedings, although free speech and a free press are arguably most threatened in the context of criminal law. Clause 4 would for instance make no difference to cases such as that of journalist Rita Pal, who was arrested and charged in 2015 under the Protection from Harassment Act 1997 after publishing a news article online and posting several tweets about an individual who subsequently complained to the police (the prosecution was later discontinued). The ECtHR ruled that UK authorities had violated Article 10 of the ECHR as they had failed to give the proper weight to Rita Pal’s right to freedom of expression.
Clause 4 also does not apply to some of the most sensitive areas of free speech that could pose a significant challenge to government and where proper safeguards that protect human rights are already lacking. For instance, the disclosure of confidential material is exempt. This is problematic since the Official Secrets Act, which provides for the protection of state secrets and official information – as well as the proposed National Security Bill, which would replace parts of the Official Secrets Act – already lacks a public interest defence. Equally exempt from Clause 4 are questions which affect national security.
Apart from Clause 4, Clause 21 – dealing with the protection of journalistic sources – and Clause 22 – dealing with relief affecting freedom of expression – also specifically relate to freedom of expression. While this may give the impression that free speech and free press protections are given a new importance in the Bill, these Clauses do not change the level of protection that is already provided today – and arguably even diminish it. Clause 21 largely replicates existing protections for journalistic sources (which are today based on the Contempt of Court Act 1981 and the ECtHR’s findings in Goodwin v. UK). Clause 22 replicates Section 12 of the HRA in relation to relief affecting freedom of expression, often arising in cases involving interim injunctions to withhold publication – however, removing, inter alia, the requirement that courts have regard to whether it would be in the public interest that the impugned material be published.
Other provisions of the Bill will undermine free expression
There are also concerns that many of the wider proposals in the Bill – combined with the removal of some of the key sections in the HRA – will undermine the protection of free expression. To highlight just two examples, Clause 3 requires courts to focus on the text of the ECHR as well as preparatory works when interpreting Convention rights. This appears to be an attempt to discourage UK courts from considering contemporary context and changing circumstances. However, in the digital age, freedom of expression and the right to information have changed dramatically. This shift has also shaped the disputes arising in the context of these rights. Courts will have to decide on issues such as the protection of copyright online; the liability of online platforms for illegal comments; or the right to internet access. To adequately protect freedom of expression and access to information in the digital age, courts will have to take account of the new developments in the online world that impact these rights.
Another much-criticised provision is Clause 5, which prevents courts from interpreting Convention rights in a way that imposes new positive obligations on public authorities. In short, positive obligations require authorities to take active steps to realise human rights. Such positive steps also play an important role in the protection of free expression. For instance, States are required to create an effective system to protect writers and journalists and allow for all individuals to participate in public debate without fear. Positive obligations also require States to take action to protect individuals against violations of their human rights by third parties. According to the ECtHR, this could include, for instance, an obligation to provide legal aid to defendants in defamation lawsuits (Steel and Morris v. UK) or to take measures to protect a newspaper and its staff from intimidation and violent acts (Özgür Gündem v. Turkey).
In the end, the Bill really does nothing more but pay lip service to freedom of expression. The requirement on UK courts to give “great weight” to the importance of free speech is ineffective and entirely undermined by the wide-ranging exemptions that come with it. With the wider changes introduced by the Bill that are set to weaken the broader human rights architecture in the UK, it is clear that the Bill will also weaken the protection of freedom of expression, should Parliament pass it in its current form.
Last but not least, the Government’s purported concern for greater free speech protection also stands in stark contrast with several recent legislative instruments it has brought forward, including the National Security Bill, the Online Safety Bill, the Higher Education (Freedom of Speech) Bill, the Public Order Bill, and the Police, Crime, Sentencing and Courts Act, all of which have been vocally criticised by freedom of expression organisations, digital rights activists and legal experts and all of which are extremely concerning from a free speech perspective.